Criminal Law

Does the First Amendment Protect Hate Speech?

By E.A. Gjelten, Author and Editor
There’s no exception for hate speech under the First Amendment’s protection for freedom of expression, unless the speech is direct, personal, and either truly threatening or violently provocative.

The First Amendment guarantees the right to freedom of expression. Many Americans—from college students to journalists to legal scholars—believe that guarantee shouldn’t apply to hate speech. As they argue, hate speech tramples on the constitutional rights of its targets by insulting, threatening, or silencing them based on characteristics that are protected under antidiscrimination laws (such as ethnicity, religion, gender, or disability). After all, the U.S. Supreme Court has carved out First Amendment exceptions for certain kinds of particularly dangerous or harmful speech. But the Court hasn’t recognized an exception for hate speech, unless it falls under one of the other kinds of unprotected expression.

Hate Speech and Fighting Words

In 1942, the Supreme Court said that the First Amendment doesn’t protect “fighting words,” or statements that “by their very utterance inflict injury or tend to incite an immediate breach of the peace” (Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)). In later decisions, the Court narrowed this exception by honing in on the second part of the definition: direct, personal insults that are so offensive they’re likely to provoke their specific target to respond immediately with violence. The Court has also said that laws can’t prohibit only some types of fighting words, like those based on racial bias (R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)).

But what about the first part of the Chaplinsky definition of fighting words—statements that are inherently harmful? Courts have generally found that the First Amendment protects speech if it causes only emotional injury, no matter how offensive it is. In one case, the father of a military veteran sued the Westboro Baptist Church for emotional distress after church members picketed his son’s funeral with hateful, antigay signs. The Supreme Court found that the First Amendment protected the picketing. The Court focused on the fact that the signs (like “God Hates Fags” and “Thank God for Dead Soldiers”) mainly addressed public issues. (Snyder v. Phelps, 562 U.S. 443 (2011).)

Speech Codes at Schools and Colleges

Courts have regularly struck down speech codes at public colleges and universities that barred racist or discriminatory comments. Usually, the courts found that the policies were too broad (meaning that they restricted too much expression that should be protected) or vague (meaning that students couldn’t predict what kinds of statements would be covered).

The rules are somewhat different for K-12 public schools. Courts have allowed more limits on students' freedom of expression than on college students or adults in other settings, as part of balancing students’ rights with schools’ responsibility to ensure that children have a safe learning environment.

Threatening Expressions of Hate

The First Amendment doesn’t give people the right to make direct, personal threats of immediate violence. This can include intimidating symbolic actions like burning a cross that are meant to make specific victims fear for their lives, even if the cross-burners don’t actually plan to carry through with the threat (Virginia v. Black, 538 U.S. 343 (2003).)

Sticks and Stones

As the law stands now, government (including public colleges and universities) generally can’t bar hate speech unless it’s direct, personal, and either truly threatening or violently provocative. At the same time, laws against hate crimes don’t violate the First Amendment, because they’re based on actions rather than expressions of an opinion (Wisconsin v. Mitchell, 508 U.S. 476 (1993)).

If you believe that a public agency or official is violating your First Amendment rights, you may want to speak with a civil rights lawyer to learn about the legal options that might be available to you.

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